Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

30 June 2007

UnKeen Wit

Over at the always provocative Madisonian blawg by Professor Michael Madison (University of Pittsburgh), there's an interesting piece by frequent guest contributor Professor Frank Pasquale (Seton Hall) concerning Andrew Keen's Cult of the Amateur (a remarkably misleading title; Cult of the Dilletante would be more accurate, but since titles are marketing material accuracy is not the highest value ascribed to them in the publishing industry).

Any given author knows that if he writes a book, he has about a one in a million chance of getting reviewed in the NYT, even if he makes all the right moves, parlays all the right connections, etc. Before people like them can take screeds like Keen’s seriously, he’d better explain exactly how the “crumbling media elite” served those they’ve shut out for so long.

Kakutani on Keen’s Kakistocracy (29 Jun 2007) (typography corrected; hyperbole left alone). I can't agree with Pasquale, Kakutani, or Keen... because they're arguing about whether Leviathan's teeth or size are his only dangerous feature.

Many observers of intellectual property law, and many more observers of publishing, are fond of quoting Samuel Johnson's epigram "No man but a blockhead ever wrote except for money." Context matters, though. This quotation comes from Boswell's Life of Johnson... and is immediately followed by several examples, in Boswell's authorial voice and even referring to Johnson himself, of non-blockheads who did not write for money.

What this implies is that there is no one publishing industry; no one measure of success (or, as is more common, failure); no single independent variable that we can manipulate to inevitably maximize the value of the function. That's the real problem with Keen's exposition, Kakutani's response, or indeed any other exemplar. The publishing industry itself provides many paradigmatic examples among living American authors. Who is most "successful": Joyce Carol Oates, of the satisfactory-but-not-immense sales (and critical acclaim) and tenured faculty position at Princeton (just down the road from Professor Pasquale); Stephen King, of the immense sales (accompanied by some grudging critical approval) and former life as a high school English teacher; or Dan Brown, of the immense sales (accompanied by critical disparagement) and inability to conduct his own properly documented research for a quasihistoriographical doorstop-weight "novel"?

The mistake being made by most observers comes from their overt focus on outliers. Kathleen Battle is not inherently "more talented" strictly as an artist than the other sopranos invoked by Prof Pasquale. Producing an operatic performance for the ages is an extraordinarily complex endeavor, and an outstanding soprano must (1) negotiate a political minefield that would intimidate even the most jaded veteran of faculty infighting to get the part in the first place, and (2) depend upon excellent, and perhaps even exceptional, performances by a huge number of supporting figures, many of whom are not musicians. And that, too, assumes that the soprano in question is performing material that itself merits the concept of a "performance for the ages!" That makes the "sopranos making a living" meme completely inapposite to "authors making a living." This discontinuity becomes even more extreme when taking a step back from the world of classical music to the world of popular music, with its increasingly unacknowledged dichotomy between composition and performance. Consider, for example, Bob Dylan... or, at least, consider the difference between his songwriting and his performance. As the marginally competent vocalist J. Marshall Hendrix once responded when asked why he continues to do his own vocals, "They let Dylan sing, don't they?" (The irony that Hendrix recorded the best-known, and certainly best-played, version of Dylan's "All Around the Watchtower"  which is better known than Dylan's own recordings  is purely intentional.) Rachmaninoff, and to a lesser extent Bernstein, are the last performer-composer combinations in the classical music world whose works continue to enjoy much acclaim or canonical weight; that might be a hint.

In the end, this illuminates perhaps the most intractable problem with intellectual property law as we know it: For creative works, we have but a single legal (and related economic) paradigm, but we force incompatible works into the box. The alternative of giving different copyright terms and fair use rights to different kinds of "art" is perhaps even less attractive... unless we want lawyers  a profession filled with notoriously bad writers  to be making the decisions on what "kind" of art is at issue in a particular instance. That I agree that the copyright term is too long (fifty years flat seems right to me) is immaterial, as that's just a quibble over the length of Leviathan's teeth. Leviathan will overwhelm you one way or another; the ironic task of intellectual property law is to nurture the beast, not to study it. And given the poor writing skills of most lawyers (one of the reasons that I read Madisonian is that it's exempt from that problem), let alone their inability to communicate through or even understand metaphor, it's probably a good thing that we don't even think about letting lawyers have much to do with the critical apparatus in the arts.

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Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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